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2011 Supreme(J&K) 164
JAMMU & KASHMIR HIGH COURT
Hasnain Massodi, J.
Abdul Hamid Rather -Appellant
Versus
State of J&K & Ors. -Resopndent
OWP No. 1509/2010 & CMP No. 2365/2010
Decided On : 08-04-2011
Mr.I.Sofi, Adv.for petitioner(s)/appellant., Mr.J.A.Kawoosa, AAG, Mr.S.N.Rattanpuri, Adv.for Respondent.
The transfer policy for government employees is recommendatory in nature without statutory enforceable rights, and the government has discretionary power in effecting transfers.
Headnote:
Transfer Policy - Government Employee Transfer - Rule 27, J&K Civil Services (Classification, Control and Appeal) Rules 1956 - [Para A, Sub para 6, Para C sub para 1, Para C sub Para 3, Rule 27, J&K Civil Services (Classification, Control and Appeal) Rules 1956, Government Order No. 861-GAD of 2010 dated 28th July 2010] - The court discussed the transfer policy for government employees, emphasizing that it is recommendatory in nature without statutory enforceable rights. The court highlighted the limited scope of judicial review of transfers under Article 226, Constitution of India, and the discretion of the government in effecting transfers. It also emphasized that a departure from the guidelines in the transfer policy should only lead to quashing of transfer orders if made in violation of statutory rules, on malafide grounds, or by an authority not competent to make the transfer order.
Fact of the Case:
The petitioner, an Incharge Principal, challenged a government order transferring and posting them to a different school, alleging violation of the transfer policy. The respondents argued that the transfer was in the interest of administration and that the petitioner's writ petition had become infractuous.
Finding of the Court:
The court emphasized the importance of transfer as an administrative tool and the limited scope of judicial review in transfer cases. It highlighted the discretionary power of the government in effecting transfers and the non-enforceable nature of the transfer policy. The court found that the petitioner's case, based on the disregard of the transfer policy, was destined to fail as the petitioner did not complain of any deviation from the transfer policy in their own transfer.
Issues: Violation of transfer policy, enforceability of transfer policy, discretion of the government in effecting transfers, limited scope of judicial review in transfer cases.
Ratio Decidendi: The court held that the transfer policy for government employees is recommendatory in nature without statutory enforceable rights. It emphasized the limited scope of judicial review in transfer cases and the discretionary power of the government in effecting transfers.
Final Decision: The writ petition was dismissed with connected CMP(s), and any interim direction was vacated.
2. The petition, having regard to the controversy involved, is at request of learned counsel for parties taken up for final disposal.
3. The petitioner, working as Incharge Principal, Higher Secondary School, B.K. Pora, since 15th May, 2008, is aggrieved of Government Order No. 792-Edu of 2010 dated 03.11.2010, whereby the petitioner has been transferred and posted as Incharge Principal Higher Secondary School, Kachwamuqam, Baramulla against the available vacancy. The petitioner's grievance is that the aforementioned order, impugned in the petition, has been made in violation of transfer policy, notified vide Government Order No. 861-GAD of 2010 dated 28.07.2010 inasmuch as the officer - respondent No. 4 herein, posted as Incharge Principal Higher Secondary School, B. K. Pora, in place of petitioner, was not due for transfer in terms of the transfer policy, and thus could not have been transferred/posted in place of petitioner as Inchafge Principal, Higher Secondary School, B.K. Pora. The petitioner seeks quashment of Government Order No. 792-Edu of 2010 dated 03.11.2010, as it relates to petitioner on following grounds:
(i) that in terms of transfer policy, para A, Sub para 6, the transfer order once issued, is to be strictly complied with and modification, if any, is to be made in exceptional case for compelling reasons and that also after obtaining approval of next higher authority and for reasons to be recorded in writing; that in the present case transfer of respondent No. 4, initially posted as Incharge Principal Higher Secondary School, Ghadole, Anantnag against the available post vide Government Order No. 790-Edu of 2010 dated 29th October, 2010 has been modified vide impugned order only five days after the initial transfer order was made in absence of any compelling reason and without obtaining approval of next higher authority and without recording reasons in writing;
(ii) that the transfer order of respondent No. 4 has been modified five days after it was made, in violation of para C sub para 1 of transfer policy, whereunder the minimum tenure of employee on the post is required to be two years;
(iii) that in terms of Para C sub Para 3 premature transfers wherever unavoidable in the interest of administration are to be ordered with prior approval of Minister Incharge for reasons to be recorded, while in present case the impugned order was neither made with the approval of Minister Incharge nor were any reasons recorded to justify the order.
4. The petitioner, on the strength of grounds set out in the petition, seeks writ of certiorari, quashing Government Order No. 792-Edu of 2010 dated 3rd November, 2010, in so far it relates to the petitioner. The petitioner seeks direction to respondents to allow the petitioner to continue to work as Incharge Principal Higher Secondary School, B. K. Pora, Budgam.
5. The writ petition is opposed on the grounds that the respondent 1 to 3 are competent to order transfer of a Government employee in the interest of Administration and that the petitioner having a long mature stay as Incharge Higher Secondary School, B. K. Pora, Budgam was rightly transferred by respondent 1 to 3 and posted as Incharge Principal Higher Secondary School, Kachwamuqam, Baramulla.
6. It is pleaded that writ petition has become infractuous as respondent No. 4 in compliance of Government Order No. 792-Edu of 2010 dated 3rd November, 2010, joined as Incharge Higher Secondary School, B. K. Pora, Budgam on 6th November, 2010 i.e. before the petitioner obtained ad-interim order against the Government order in question. The respondents, to lend support to their case, have annexed with the reply joining report of petitioner as Incharge Principal Higher Secondary School, B. K. Pora, Budgam.
7. I have gone through the pleadings and have heard learned counsel for parties.
8. Transfer of a government employee is an important tool with the government to make administration people friendly, result oriented, acc
